was that if the matter could not be resolved, prosecution may follow. It did not necessarily matter if the investigation was only at an early stage. Similarly, in finding that litigation was the dominant purpose of the investigation, the Court of Appeal took a pragmatic view, appreciating that an investigation may have multiple purposes, but that this does not necessarily preclude litigation being the dominant one. Consistently with practical reality, the Court of Appeal also jettisoned the controversial distinction between avoiding and defending litigation, recognising that both are litigation purposes. Also positive is the Court of Appeal’s
approach to the relevance of regulator dialogue and self reporting; the fact that a document is prepared with the ultimate intention of providing it to an opponent does not automatically deprive the preparatory work of litigation privilege. The Court of Appeal recognised the public interest in enabling businesses to investigate effectively before making decisions about self reporting. However, a source of concern remains the
definition of ‘client’. With the Court of Appeal constrained by legal precedent from doing anything to relieve the harsher consequences of previous narrow definitions, the position remains
that its application to more complex corporate structures creates confusion, and can result in a loss of privilege. Yet, the matter does not end there. Privilege
challenges continue, with a series of further cases coming before the courts as parties seek to force their opponents to reveal more than they would like. The result is that nothing can be guaranteed, with everything turning on the particular facts at issue. Purely commercial discussions are unlikely to attract either legal advice or litigation privilege, and the dominant purpose test is crucial for both litigation privilege and – it appears from very recent case law – legal advice privilege. Parties must be alive to the strict
requirements for privilege to attach and remain, if they are to maximise the possibility of resisting disclosure of confidential communications to hostile opponents in proceedings before the UK courts. The waters remain muddied – the hope is that the Supreme Court will be asked to clarify the UK rules around privilege sooner rather than later. In the meantime, the best course is to seek expert advice at the outset
Laura White is a associate in the health and safety team at Pinsent Masons
www.frmjournal.com MAY 2019
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